Smith v. Harrison
| Decision Date | 09 September 1955 |
| Docket Number | No. 35680,No. 1,35680,1 |
| Citation | 89 S.E.2d 273,92 Ga.App. 576 |
| Parties | L. M. SMITH v. W. O. HARRISON |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. It is error for the court, in giving a rule of law in charge to the jury, to omit a material portion of it which is pertinent to the issues in the case.
2. In close and doubtful cases where the evidence is in sharp conflict it is error to fail to charge all of Code, § 38-107, same being the Code section on the determination of where the preponderance of the evidence lies, when a part thereof has been charged. Turner v. Joiner, 77 Ga.App. 603(3), 48 S.E.2d 907.
3. When the judge undertakes to instruct the jury in reference to the requirement of the statute regulating the speed of motor vehicles, he should inform the jury as to all of its provisions applicable to the issues of the case.
4. No duty devolves upon the guest passenger, who has no right or duty to control the operation of the automobile unless the circumstances are such that he is afforded a reasonable opportunity to take appropriate action to avoid being injured.
5. It is error to submit to the jury an issue concerning which there is no evidence.
6. It was error for the court to charge the jury: 'I charge you that, if the plaintiff had the right or was under the duty to control or influence the driver's conduct, any negligence of the driver which contributed to causing the collision would be imputable in law to the plaintiff, and the plaintiff would be responsible for such conduct of the driver'; there being no evidence that the plaintiff had any right to control or influence the driver of the automobile in which he was riding as a gratuitous guest.
Lester M. Smith brought suit against W. O. Harrison in the superior court of Jackson County.
The petition, as amended alleged: that the defendant, W. O. Harrison, a used car dealer, had damaged the plaintiff in a stated amount; that on June 25, 1953, at approximately 9:45 P.M. plaintiff was riding in a Ford automobile owned and operated by Billy Gene Dodd; that Dodd was driving the automobile in a southerly direction along U. S. Highway No. 23; that as the automobile driven by Dodd reached a named point on the highway it was met by a Cadillac sedan automobile to which was attached a Henry J. automobile; that the Cadillac was owned by W. O. Harrison and driven by his employee, Leonard C. Wood, who was at the time acting within the scope and course of his employment as the defendant's servant; that the automobile in which the plaintiff was riding rounded a curve on the highway, at the point before mentioned, the Cadillac automobile driven by the defendant's employee rounded a sharp curve from the opposite direction and proceeded along Dodd's right side of the highway toward the automobile in which the plaintiff was a passenger, and collided with its left front end with great force; that in rounding the curve the defendant's driver did not dim the lights on the Cadillac and the bright lights of that vehicle blinded Billy Gene Dodd so that he could not see the highway; that the collision between the Dodd automobile in which the plaintiff was riding and the automobile driven by the defendant's employee occurred in the manner described; that the defendant's agent operated the Cadillac on the occasion of the collision at a speed in excess of 55 miles per hour and greater than was reasonable and safe having due regard for the grade, width, traffic and common use of the highway. The petition set out that the plaintiff was without fault, and could not by the exercise of ordinary care have avoided the defendant's negligence after it became apparent to him. The petition enumerated certain negligent and unlawful acts of the defendant's driver, specifically setting each such alleged act out in detail. It was alleged that the plaintiff sustained described injuries some of which were of a permanent nature, and incurred certain expense as a result of the collision.
The answer admitted that the defendant resided in Jackson County; that on the occasion of the collision the driver, Wood, was acting within the scope of his employment; and denies all other material allegations of the petition.
Both parties offered proof to sustain their respective contentions. We do not relate the evidence here in detail, since so much as relates to the questions denied are discussed extensively in the body of the opinion.
The jury returned a verdict for the defendant.
The plaintiff filed a motion for new trial and later amended it by adding ten special grounds. The court denied the motion for new trial as amended, to which ruling the plaintiff excepted.
E. C. Stark, Commerce, Kimzey & Crawford, Linton K. Crawford, Cornelia, for plaintiff in error.
Erwin, Nix, Birchmore & Epting, Athens, Davis & Davidson, Jefferson, for defendant in error.
1. Grounds 1 and 2 of the amended motion for new trial complain that, without request, the trial court failed to give in charge to the jury subdivisions c and e of Code, § 68-303, reading:
The plaintiff's case was predicated upon the contention that certain injuries sustained by him in a collision between an automobile in which he was a guest passenger and defendant's automobile was caused by the failure of the defendant's driver to observe the requirements of the subsections referred to.
In Kryder v. State, 57 Ga.App. 200(4), 194 S.E. 890, it is said that the thing of paramount importance is that the jury be instructed as to the issues of the case and the law applicable thereto. "The Supreme Court has uniformly held that the charge of the judge to the jury must give the law of the case to the extent of covering the substantial issues made by the evidence, whether such instructions are requested or not; and this is especially true where there is but one controlling issue, and for its just determination a specific instruction should be given." Van Valkenburg v. Wood, 41 Ga.App. 564(1), 153 S.E. 924, 925.
In the cases of Phenix Ins. Co. v. Hart, 112 Ga. 765(1), 38 S.E. 67, and Chattanooga & D. R. Co. v. Voils, 113 Ga. 361 38 S.E. 819, it is held error for the court to fail to charge the jury on a vital issue in the case, whether requested to do so or not.
There was sufficient evidence to make an issue as to whether the defendant's driver violated § 68-303, subd. c; the issue was a vital issue in the case. To fail to instruct the jury as to the rule of law embodied in subdivision c of § 68-303 was error requiring a new trial.
It also appears from the record that, while it was somewhat vague and indefinite, there was some evidence to support the plaintiff's contention that the defendant's driver violated subdivision c.
2. As contended in ground 3 of the amended motion for new trial the court, when charging the provisions of Code, § 38-107, providing the method by which it is determined where the preponderance of evidence lies, should not have omitted to instruct the jury that they consider 'the nature of facts to which they testified, and the probability of their testimony.'
Under the facts of this case, it was error for the court, in charging the provisions of Code, § 38-107 concerning the matters to be considered by the jury in determining where the proponderance of the evidence lies, to fail to instruct the jury that they should consider 'the nature of the facts' testified to by the witness and 'the probability or improbability of their testimony.' Turner v. Joiner, 77 Ga.App. 603(3), 48 S.E.2d 907.
3. The 4th ground of the motion for new trial complains that the court erred in charging the jury: 'I charge you that the speed limit at the time of the alleged damages, if you believe there were damages, for automobiles...
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